State v. Hatcher

• Decision Date: 19 January 1897
• Citation: 38 S.W. 719,136 Mo. 641
• Parties: STATE v. HATCHER.
• Court: Missouri Supreme Court

38 S.W. 719

136 Mo. 641

STATE v. HATCHER.

Supreme Court of Missouri, Division No. 2.

January 19, 1897.

CRIMINAL LAW — PLEAS — FORMER JEOPARDY.

A conviction of common assault, on an information by the prosecuting attorney charging such offense only, and a payment of the fine, are a bar to a prosecution on indictment for felonious assault based on the same acts.

Appeal from circuit court, Jasper county; E. C. Crow, Judge.

Ben Hatcher was convicted of a felonious assault, and appeals. Reversed.

Thos. F. T. Whitney, for appellant. R. F. Walker, Atty. Gen., for the State.

SHERWOOD, J.

The controlling question this record presents is whether a party, who, being plainly guilty of a felonious assault, by cutting and woundng another with a knife, but prosecuted by the prosecuting attorney before a justice of the peace on an information charging only a common assault, and convicted thereof, can afterwards be put upon trial on an indictment charging him with a felonious assault, and again convicted. There is no doubt that a prosecuting attorney, after an indictment has been found for an offense, may elect to prosecute for a lower grade of the same offense, necessarily included within the same offense. There is no statute on this subject, but the power is inherent in the state's officer thus to nolle any portion of an indictment. State v. Moxley, 115 Mo., loc. cit. 651, 22 S. W. 575, and cases cited. Under the like reasoning, the prosecuting attorney may, in the first instance, file an information charging a person guilty of a less offense than that for which he should have been charged. Section 23 of article 2 of our constitution has been cited as applying to this case, but it does not, as that section only applies, so far as concerns the point in hand, to cases where "a person, after being acquitted by a jury," etc., the convention of 1875 not deeming it necessary to make provision for cases where conviction should occur. Our legislature, however, more thoughtful, has made distinct provision for cases where either conviction or acquittal occurs on an indictment, and the word "indictment," as there used, may well be regarded as a generic term, embracing an "information." But, in any event, no court of justice should tolerate the idea that a person convicted of a less offense should again be put upon trial for a greater offense, in which is included the same facts as in the former case. This is always the case, unless collusion be shown. In this view of...